June 2009 Archives

Getting ready for a criminal trial is a stressful time. It's particularly stressful for the relationship between the lawyer trying the case and the person who is trusting the lawyer to try the case well. The lawyer may see the case one way, and the client may have a very different, even inconsistent, view of how the case should be tried.

As a result, it is not uncommon for a person accused of a crime to try to find a new lawyer shortly before trial. The problem, however, is that often the court is uninterested in upsetting its schedule to allow a new lawyer to come into the case.

When does a court grant a motion for new trial? In the Fourth Circuit, which decides the rules for federal trial courts in Maryland, the Virginias, and the Carolinas, the case that describes how a trial court resolves a request for a new lawyer during a trial is United States v. Mullen.

Senator Jim Webb, who is perhaps the best thing to come out of Virginia since Thomas Jefferson, is on a campaign to reform our criminal justice system. He's currently trying to pass legislation that will consider how our criminal justice system is broken, and what we need to do to fix it. He wants to look at how we incarcerate folks with mental illness, and why our incarceration rates are the highest in the civilized world. And, he keeps pushing the proposal.

Let's start with a premise that I don't think a lot of Americans are aware of. We have five percent of the world's population; we have 25 percent of the world's known prison population. There are only two possibilities here: either we have the most evil people on earth living in the United States; or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice.

Obviously, I'm a big fan of this effort. Senator Webb showed a lot of intellectual strength in the way he responded to President Bush's 2007 State of the Union address, and his campaign for Senate in 2006 was a lot of fun to watch. I'm very excited that he's willing to touch such an unpopular, yet deeply troubling, problem.

Many people ask me what the prosecutor has to prove to have the jury convict them of a crime. At a general level, the answer is pretty straightforward - the prosecutor has to prove each and every element of the charged offense beyond a reasonable doubt.

By way of example, consider a conspiracy charge. The elements of conspiracy, at least under federal law, are (1) an agreement (2) between two or more people (3) to do something criminal, and (4) an overt act in furtherance of the conspiracy by at least one coconspirator. The prosecutor has to prove, then, beyond a reasonable doubt, each of these elements.

And, really, that's it.

It doesn't matter if the agreement wasn't in writing. It doesn't matter if any particular coconspirator didn't realize that the subject of the agreement was a crime. It doesn't matter if the person being charged is just a minor player. If the government can prove the elements of a conspiracy, that's enough for a jury to find someone charged with that crime guilty.

The New York Times, in the opinion piece linked to above, thinks this is a bad idea. They think it isn't terribly significant punishment and can be dispatched too quickly and with too much insincerity. Perhaps.

A publishing blog questions (without saying as much) whether such a condition of probation can be constitutional. With a headline "Torture reinstituted in Washington Courts" the MobyLives blog suggests that writing a book is the kind of thing a person cannot be ordered to do, comparing the requirement that the defendant write a book to being ordered to hit a home run at Nationals Park (which may not be the best metaphor, hitting a home run at Nationals Park seems to be pretty easy for many visiting teams, particularly in, say, the 8th inning).

A person can only be punished for willfully violating a condition of probation - if the defendant/author can't write a book, he can't be punished for not complying with his probation conditions. Perhaps this condition can't be complied with (though, really, compared to spending time at your local Federal Correctional Institution, surely writing a book isn't that hard).

Personally, I think it remedies one big problem with our criminal justice system - that the person who is caught up in the system is too often silenced. His lawyer tells him not to talk (for good reason), he often does not testify at his own trial (for good reason), and prosecutors and agents tend to think that anytime he's talking he's lying.

California may have to lay off some of its public defenders. It will not be suprising that I think this is a bad thing. Obviously, this is not a great economy. Most of us are hurting. Governments need to cut costs, just like everyone else.

As the linked to article makes clear, though, cutting public defender budgets is really not a great way to do it.

Defendants would sit in jail longer, increasing incarceration costs. . . . Cases would be delayed while private attorneys get up to speed, creating bigger clogs in a legal pipeline that barely trickles now.

And, of course, paying private counsel to work on cases instead of paying a public defender's office is an illusory cost savings.

That said, budgets must be cut; books must be balanced. What's the best way to implement a cheaper system of criminal justice?

The Fourth Circuit decided today to deny rehearing en banc in a published opinion. Here it is. That, itself, is somewhat remarkable.

What's more remarkable are the underlying facts of the case of United States v. Whorely. Mr. Whorely was communicating with other adults via email. He did not send pictures. Instead, he transmitted, through text alone, his sexual fantasies. His fantasies, as it happened, involved kids and, therefore, were obscene (though the opinion makes it clear the kids were only imagined; no real children were harmed while Mr. Whorely was typing).

Judge Niemeyer, writing for everyone on the Fourth Circuit but Judge Gregory, sums the case up like this, "Whorley violated criminal statutes regulating obscenity, and his convictions may not be forgiven because his conduct was prompted by his sexual fantasies."

After noting that this may be a very unfortunate case of a criminal defense lawyer not preserving an issue properly in an appeal, Judge Gregory pulls out the rhetorical big guns in dissent.

I am hard-pressed to think of a better modern day example of government regulation of private thoughts than what we have before us in this case: convicting a man for the victimless "crime" of privately communicating his personal fantasies to other consenting adults.

Judge Gregory's view is that Stanely v. Georgia, which held that possession of obscene material in your house is protected by the First Amendment, should also apply to your email inbox.

In today's world, our e-mail inbox, just as much as our home, has become the place where we store the "memorabilia of [our] thoughts and dreams," and the same principles that animated Stanley call now for Stanley's extension to the circumstances of this case.

I have two reactions to this decision.

First, as a lawyer, I see where the court is coming from. Surely Gregory's view that your inbox is basically the same as your bedroom is factually (and probably morally) questionable. Email is out there in the world. Your bedroom is, well, not.

On the other hand, really? We're really putting people in prison for writing fiction and sending it to other people? Not to be cliche, but if Lolita were more graphic I could go to prison for faxing it to someone (you've got to use the wires to meet the other statutoy elements in the case)?

I'm with Gregory when he says that

The Supreme Court's obscenity jurisprudence has never come close to stripping adults of First Amendment protections for their purely private fantasies, and the implications of our sanctioning this kind of governmental intrusion into individual freedom of thought are incredibly worrisome.

The Fourth Circuit has ruled that a federal district court cannot assume that a sentence within the guidelines is reasonable. The case is United States v. Cordell Smith. Check out the opinion here.

It has been far too easy for federal judges to look at the conveniently calculated guidelines range and give a sentence within that range.

As I've written about before, the things you have to think about in sentencing a person are complicated and hard to get traction on. How do you balance "respect for the law" with the nature of the offense and an individual defendant's background in such a way as to arrive at a specific number of months in prison?

It's very easy for judges to look to the guidelines, which at least provide a mechanism for solving these kinds of problems. And they have the imprimatur of objectivity; an agency solicited input from lots of different sources, did a bunch of complicated (and opaque) empirical work, and generated a big book of rules.

The Supreme Court has said that a guidelines sentence is not presumptively reasonable. The Fourth Circuit last month agreed. Will this make a difference in the way judges sentence in Maryland, the Virginias, and the Carolinas? Will it change the way criminal defense lawyers approach sentencing?

Your case may be bad. It may be really bad. But your lawyer should not tell you to plead guilty before he or she looks at the evidence in your case.

Maybe six cops found you with a counterfeit machine on your lap dripping with ink and newly created "currency" stacked around you. Maybe they found a video tape of you telling your broker to sell because you've got inside information that the company's product causes head lice. Maybe you went door to door confessing to a crime and the story is now on youtube. Regardless, your lawyer should look at the evidence the government has against you before trying to figure out whether to make a deal with the government or go to trial.

Sure, there are times when you need to make a decision quickly. But normally that means a prosecutor should get your lawyer his evidence more quickly.

Federal courts do not hear every case; they are courts of limited jurisdiction. Most criminal conduct is prosecuted in state court, both because federal prosecutors are (supposed to be) selective about when they make a federal case out of it, and because there is not federal jurisdiction over every case.

That said, there are many ways to meet the thresholds for federal jurisdiction. The accused D.C. Madam, for example, was charged in federal court with using the mail in furtherance of her alleged prostitution ring. Had she avoided using the mail, she also might have avoided a federal trial. (Perhaps Federal Express missed a marketing possibility.)

The Fourth Circuit decided a case on June 10, that shows another way to allow a federal court to assert jurisdiction over you.

In United States v. Wadford, the Fourth Circuit reviewed the conviction of Mr. Kelly Wadford. The opinion is available here. Mr. Wardford is, to put it mildly, not the kind of guy you would want your daughter to bring home.

According to the opinion, Mr. Wadford is an afficiandao of Rohypnol, the date rape drug. Repugnant as it is, though, it was not Rohypnol use alone that landed him in federal court. Rather, Mr. Wadford chose to use his Rohypnol on a business trip with a female colleague who he drugged and assaulted. While on the trip, the travellers crossed several state lines. This provided the basis for a charge under the Mann Act.

Even that may not have been what got him a federal indictment though. How did Mr. Wadford ensure he'd wind up in federal court?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.

The man initial appearance in federal court was yesterday and his family cried during the hearing. By way of explanation, the man's defense lawyer said, "they are sorry for what happened to the officers. Their thoughts are with the officers and the officers' families."

It's very moving that at the time of man's first appearance in federal court, his family was so very moved by concern for the families of those police officers.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.

Marcos Ribles was charged with the crime of making counterfeit currency in Argentina. His case was thrown out because his counterfeit bills were "so clumsy and crude" that "they could not be accepted by most people." That is some quality defense lawyering

The United States is not like Argentina in many ways. New Years is in the Winter, and people who try to commit crimes ineptly cannot use their ineptness as a defense.

The general rule in America is that if a person tries to commit a crime in a way that is not going to succeed, he cannot use that as a defense. That is, in lawyer language, factual impossibility is generally not a defense to a crime. So, if you try to rob a bank by saying that you'll blow up the branch with a cold fusion machine, you can still be guilty of bank robbery (i.e., you can violate the provisions of the United States Code even if you can't violate the laws of physics).

There are exceptions, as the folks at the Volokh Conspiracy have pointed out. Praying for John McCain's death, though creepy, is not the same as committing attempted murder.

And, apparently, the weight of authority is against prosecuting people for murder accomplished through voodoo. (Though I swear I heard about contrary authority on that point on a ghost tour in a New Orleans cemetery once.)

When the supernatural is not involved, though, it is very hard to say that a course of conduct aimed at doing something illegal is so poorly executed that it can't be prosecuted. If Mr. Ribles had committed his crime in the U.S., he likely would not be able to get it dismissed because his work product was so poor.

Perhaps it says something significant about our country, but hopelessness is not a defense in the United States.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.

The second rule of being charged with a crime is to not talk about being charged with a crime. Do not talk about being charged with a crime with anyone who is not your lawyer.

Your communications with your lawyer are protected. Unless you're hatching a crime or scheming up a lie with your lawyer, the government cannot find out what you talk about with your lawyer.

Conversations with other people are not protected. The government can learn what you told your mom. It can subpoena your dad. A prosecutor can make your sister talk. Your boyfriend can be brought before a grand jury.

Jurors will find your words through the voice of your family and friends to be very persuasive and credible evidence against you. Do not create such powerful evidence.

You may think your family will lie for you. Your friends may be willing to protect you. But that's a horrible position to put people in and it may not work. The only thing worse than going over a cliff is taking your loved ones with you.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.

The jury is losing importance in our society. Fewer trials go to juries, fewer people want to serve on juries, and, yesterday, the D.C. Circuit said that in some cases when juries find a person not guilty of conduct he can still go to prison for it.

The court's ruling, in essence, is that if a person has four counts against him, and wins on all but one, the judge can sentence him as though he'd been found guilty on all four counts, provided the final sentence doesn't go above the statutory maximum sentence for that one count. Click here for coverage from the Legal Times Blog.

This rule is unfortunate for two reasons. First, it's bad for people accused of crimes and their lawyers. Second, it's bad for people who serve on juries.

A juror who is excited about civic service wants his or her decision to matter. The juror wants to contribute, and to be respected. What this ruling says is that the system knows better than the jurors who participate in it. Even if a juror gave up weeks of his or her life for a trial, a probation officer who wasn't even in the courtroom can argue that the jury was wrong, and a judge can ignore the jury's decision to jack up a person's sentence.

What does this mean for the average person accused of a crime in federal court?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.

Malcolm Gladwell recently wrote a wonderfully fun article about how underdogs win in the New Yorker. He profiles a few examples of how underdogs, like David in David versus Goliath, can win. To sum it up in a way that loses all the nuance and fun, Gladwell argues that successful underdogs (like David, George Washington, and a girl's basketball team in California) win by playing within the rules, but in a way that violates the social conventions and norms that surround the activity the underdog is participating in.

So, for example, David laid down his sword and armor, and picked up a sling shot, in part so Goliath wouldn't get close enough to land a blow. George Washington did not fight in ordered rows of men, but, instead, hid in the woods and picked off the English as they marched in bright red jackets through the woods (which were not bright red).

This approach has been successful, apparently, in the vast majority of cases where it's been used militarily. It's an inspiring story of cleverness triumphing.

Carolyn Elefant has written about what the conclusions from Gladwell's article mean for the practice of law (Spoiler Alert: it's good to be in a small firm). And one can see how this could be applied in lots of ways.

There is, though, a dark side to Gladwell's article that isn't as inspiring. Apparently, when underdogs keep fighting like underdogs, at some point they start to look like jerks.

What can Gladwell tell us about criminal defense?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.

I am amazed at the things I hear that lawyers are doing when they first meet with a potential client, particularly a client who is accused of a crime. It's a big moment in the case, and it sets the tone for the rest of the lawyer's working relationship with the client.

In the hopes that you'll be amazed, and, perhaps, amused, at these stories, I'm starting this series on Things A Lawyer Should Not Do During Your Initial Consultation.

The First Thing a Lawyer Should Not Do During Your Initial Consultation is . . . Lecture You.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.

Happily, Roxana Saberi was released from custody in Iran. News reports are that she confessed to being a spy for the United States. To be clear, she reports that she was never tortured, but, understandably, found the experience very mentally challenging.

What's remarkable is how easily people accept that she falsely confessed to being a spy. In almost every criminal case with a confession, the immediate knee-jerk reaction is that the person is guilty. Work can be done by a skilled lawyer to try to bring a jury to understand that, sometimes, people falsely confess, but it isn't a given in any situation.

Neither Roxana Saberi and a person accused of a crime in the United States who has falsely confessed were tortured, and both gave their confessions under very difficult emotional and physical circumstances. There may be some differences in the stress Roxana Saberi and the U.S. suspect were facing, but I don't think that explains why people react differently to the two.

What's the difference between Roxana Saberi and the average criminal defendant?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.